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TaxTMI 
TaxTMI 
TaxTMI 
2016 (12) TMI 1375
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....nt vide their letter dated 29/1/2009 stated that the goods viz. H.R. Coils, M.S. Channels, Beams, Joists, hot rolled sheets, H.R. Sheet Coils, although fall under Chapter 72 of Central Excise Tariff are in fact components/spares of the machinery/plant namely rolling mill installed in their factory which falls under Chapter 8455 of Central Excise Tariff, as such qualifying as Capital goods in terms of Rule 2(a) (A)(iii) of Cenvat Credit Rules, 2004. Further, as per letter dated 19/5/2009 submitted by the appellant alongwith a certificate issued by the Chartered Engineer, it has been certified that the M.S. Plates, M.S. Channels, Beams, Joist, H.R. Coils, have been used for repair of Chimney and Furnace. They also used the above items in a structure supporting the Gasifire. Accordingly, proceedings were initiated against the appellant and a show cause notice dated 3/6/2009 was issued. The lower adjudicating authority confirmed the demand and Ld. Commissioner(Appeals) upheld the Order-in-Original. Ld. Commissioner(Appeals) while passing order mainly placed reliance on the judgment in case of Vandana Global Ltd Vs ....
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...., issue has been settled that the Cenvat credit is not admissible on the structural steel. He further submits that as regard the admissibility of the Cenvat credit on the structural steel he places reliance on the following judgments: (a) Bharti Airtel Ltd Vs. Commissioner of Central Excise, Pune-II[2014(35) S.T.R. 865(Bom.)] (b) Daya Sugar Vs. Commissioner of Central Excise, Meerut-I[2015(316) ELT 394(All)] (c) Vandana Global Ltd Vs. Commissioner of C. ex. Raipur[2010(253) ELT 440 (Tri. LB)] (d) Saraswati Sugar Mills Vs. Commissioner of C. Ex. Delhi-III[2011 (270) ELT 465(S.C.)] As regard the limitation, he submits that as per the Hon'ble Allahabad High Court judgment in case of Commr. of Cus.& C. Ex. Ghaziabad Vs. Rathi Steel & Power Ltd [2015(321) ELT 200(All.)]. Hon'ble High Court observed that fact has to be ascertained that whether there is any suppression of facts on the part of the appellant or otherwise therefore merely because there were divergent decision, that alone cannot be the ground for not invok....
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....ecipitator for raw mill project, additional fly ash handling system, MMD crusher etc. for the Dry Process Cement Manufacturing Plant. It is evident that MS Angles, MS Beams, MS Channels etc. were used in the erection of machineries it become component of the same, which are integral part of Dry Process Cement Manufacturing Plant. It is noted that Fly Ash handlish system is a pollution control equipment and particularly mentioned in Rule 2(a)(A)(ii) of Rules, 2004. The allegation in the above show cause notice that the Chapter Heading of these items were not covered under Rule 2(a) of the Rules, 2004, is not sustainable, in respect of pollution control equipments because the rule does not specify the tariff headings under which pollution control equipment should be falling. The appellant established that these items were used for erection of capital goods namely Dry Process Cement Manufacturing Plant, which falls under Chapter 84, as mentioned in Serial No. (i) of Rules 2(a)(A). Thus, the items in question are covered in serial No. (iii) of Rules 2(a)(A) of the Rules, C.B.E. & C. has clarified that all parts, components, accessories which are to be used with capital goods in serial ....
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....oner of Central Excise v. M/s. India Cements Limited), pointing out to Rule 57Q and the interpretation placed by the Apex Court in the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd.) and in particular Paragraph Nos. 12 and 13, wherein the Apex Court had applied the user test by following the Jawahar Mills's case, this Court held that steel plates and M.S. Channels used in the fabrication of chimney would fall within the ambit of "capital goods". In the face of this decision in the assessee's own case there being no new circumstance or decision in favour of the Revenue, we do not find any good ground to take a different view herein too. 10. As far as the reliance placed by the Revenue on the decision reported in 2011 (270) E.L.T. 465 (S.C.) (Saraswati Sugar Mills v. Commissioner of C.Ex., Delhi-III) is concerned, we do not think that the said decision would be of any assistance to the Revenue, considering the factual finding by the Tribunal therein in the decided case that the machineries purchased by the assessee were machineries themselves. Thus, after referring to the decision reported in 2010 (255) ....
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.... appeal filed by the Revenue. 15. Accordingly, following the principles laid down in the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning & Weaving Mills Ltd.) and the earlier decisions of this Court in C.M.A. No. 3101 of 2005, dated 13-12-2012 and C.M.A. No. 1265 of 2014, dated 10-7-2014, we are inclined to allow the appeal, thereby set aside the order of the Tribunal. Accordingly, this civil miscellaneous appeal stands allowed. No costs. Consequently, M.P. No. 1 of 2011 is closed. (b) Chemplast Sanmar Ltd [2014(310) ELT 870(Mad.)] 9.The learned counsel for the assessee submitted that this court has already considered a similar issue in CMA 1301/2005, dated 31-12-2012 and in C.M.A. No. 1265/2014, dated 10-7-2014 [2014 (310) E.L.T. 636 (Mad.)] and allowed the credit. This court, while considering Rule 57Q of the Central Excise Rules, regarding the goods used as structural support to the plant and machinery, placed reliance on the decision reported in 2010 (255) E.L.T. 481 (Commissioner of Central Excise, Jaipur v. Rajasthan Spinning and Weavinig Mills Ltd.), wherein the Apex Court has rejected the plea of the Revenue ....
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....e raised in the present reference is squarely covered by the judgment of the Apex Court in Commissioner of Central Excise Vs. Jawahal Mills Ltd. [2001(132) ELT 3(SC). In paragraphs 4 and 5 of the said judgment, the Apex Court has observed as under: 4. The aforesaid definition of 'Capital goods' is very wide. Capital goods can be machines, machinery, plant, equipment, apparatus, tools or appliances. Any of these goods if used for producing or processing of any goods or for bringing about any change in any substance for the manufacture of final product would be 'Capital goods', and, therefore, qualify for availing Modvat credit. Per clause (b), the components, spare parts and accessories of the goods mentioned in clause (a) used for the purposes enumerated therein would also be 'Capital goods' and qualify for Modvat credit entitlement. Clause (c) makes moulds and dies, generating sets and weigh bridges used in the factory of the manufacturers as capital goods and thus qualify for availing Modvat credit. The goods enumerated in clause (c) need not be used for producing the final product or used in the process of any goods for the manufacture ....
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....ourt in the case of Jawahar Mills Ltd., in our opinion, no substantial question of law is involved in the present references. On this ground only the references are deserved to be rejected. We do not deem it necessary to deal with the other submissions made by the learned counsel for the parties. In view of the above, all the references are rejected (d) Mundra Ports & Special Economic Zone Ltd 6. Before deciding the question, we deem it appropriate to extract Rule 2(k) and 2(l) of the Cenvat Credit Rules 2004. "Rule 2(k) "input" means- (i) all goods, except light diesel oil, high speed diesel oil and motor spirit, commonly known as petrol, used in or in relation to the manufacture of final products whether directly or indirectly and whether contained in the final product or not and includes lubricating oils, greases, cutting oils, coolants, accessories of the final products cleared along with the final product, goods used as paint, or as packing material, or as fuel, or for generation of electricity or steam used in or in relation to manufacture of final products or for any other purpose, withi....
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....mended in exercise of the powers conferred by section 37 of the Central Excise Act 1944 with effect from 7.7.2009, the date on which it was notified by the Central Government from the date of the notification. According to learned counsel for the appellant, this amended definition would apply only to the factory or manufacturer and would not apply to the service provider. According to him, either before the amendment made in the year 2009 or thereafter, the appellant was neither factory nor manufacturer and he has only constructed jetty by use of cement and steel for which he was entitled for input credit as jetty was constructed by the contractor, but the jetty is situated within the port area and the appellant is a service provider. According to the appellant, his case is squarely covered by the judgment of the Division Bench of the Andhra Pradesh High Court in Commissioner of Central Excise, Visakhapatnam-II Vs Sai Sahmita Storages (P) Limited, 2011(270) E.L.T. 33 (A.P.) = 2011-TIOL-863-HC-AP-CX wherein in paragraph 7, it has been clearly held that a plain reading of the definition of Rule 2(k) would demonstrate that all the goods used in relation to manufacturer of final produc....
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....s constructed by the appellant by purchasing iron, cement, grid etc. which are used in construction of jetty. The contractor has constructed jetty. There are two methods, one is that the appellant would have given entire contract to the contractor for making jetty by giving material on his end and then make the payment, the other method was that the appellant would have provided material to the contractor and labour contract would have been given. The appellant claims that he has provided cement, steel etc. for which he was entitled for input credit and, therefore, in our opinion, the appellant was entitled for input credit and it cannot be treated that since construction of jetty was exempted, the appellant would not be entitled for input credit. The view taken contrary by the Tribunal deserves to be set aside. 10. For the reasons given above, this Tax Appeal succeeds and is allowed. The denial of input credit to the appellant by the respondent is set aside. The appellant would be entitled for input credit. The question is answered in favour of the assessee appellant and against the department. No order as to costs. (e) Rajasthan Spinning & Weaving Mills Ltd 6. Per contra....
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....ge of Rule 57Q is clear and unambiguous. It applies to the final products described in column (3) of the Table under the Rule as also to other goods, referred to as "capital goods", described in the corresponding entry in column (2) of the said Table, used in the factory of the manufacturer of final product. The parties are ad idem that diesel generating set falls under Chapter 85 under Heading No. 85.02, as described at Serial No. 3 of the afore-extracted Table. Similarly there is no dispute that chimney attached with the generating set is covered by the items described in Serial No. 5 thereof. However, the controversy centres around the question whether the steel plates and M.S. channels used in the fabrication of chimney would fall within the purview of Serial No. 5 of the Table below Rule 57Q. 10. Having examined the question in the light of the language employed in Rule 57Q and the case law on the point, we are of the opinion that the appeal is devoid of any merit. 11. In Jawahar Mills Ltd. (supra), heavily relied upon by the learned counsel for the assessee, the question which came up for consideration was whether the claim of modvat credit by some manufacturers in respect ....